No. 401 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas, Criminal Division, Warren County, 1980, Nos. 555 & 556 of 1976 and 552 & 553 of 1976.
Dennis C. Cogan, Allen Ellis and Robert C. Fogelnest, Philadelphia, submitted a brief on behalf of appellants.
William F. Morgan, Assistant District Attorney, Warren, for Commonwealth, appellee.
Price, Cavanaugh and Hoffman, JJ.
[ 309 Pa. Super. Page 343]
The instant appeal is brought from an order of the court below, entered on April 29, 1980, denying appellants' motion to dismiss based on double jeopardy grounds. For the reasons stated herein, we affirm the order of the lower court.
The events pertinent to this appeal are as follows: The appellants, Terri Tami and Bonnie Irvine Tami, husband and wife, were convicted in a non-jury trial*fn1 before Wolfe, P.J. of Warren County of delivering a controlled substance in violation of the Drug, Device and Cosmetic Act of 1972.*fn2
At the preliminary hearing, undercover state trooper Paul Bartko testified that in May 1976 he was introduced to the appellants by one Jack White. The next encounter between Bartko and one of the appellants was on June 22, 1976. On that date, White telephoned the Tami residence and said that Bartko would be stopping by. Bartko went to the Tami residence later that day and purchased narcotics from Bonnie Irvine Tami. He made three subsequent purchases from the appellants. Trooper Bartko was unaccompanied on each of the four occasions.
On appeal, the Superior Court reversed and granted a new trial on the grounds that the record failed to disclose that appellants' waiver of a jury trial was knowingly and intelligently made. Commonwealth v. Tami, 264 Pa. Superior Ct. 535, 400 A.2d 214 (1979). Prior to the commencement of the second trial the appellants jointly filed a motion to dismiss based on double jeopardy and violation of due process grounds wherein they contended that as a result of intentional prosecutorial misconduct during the proceedings
[ 309 Pa. Super. Page 344]
surrounding the first trial they failed to raise the defense of entrapment. Specifically, appellants argue that the Commonwealth at the preliminary hearing misled them into believing that, Jack White, the intermediary who introduced the appellants to the undercover police officer to whom they sold narcotics, was not a government informant. Therefore, appellants argue, they were foreclosed from developing an entrapment defense. We find the appellants' characterization of the facts to be unsupportable.
Appellants contend that they were misled by the testimony of the undercover state police officer, Paul Bartko, at the preliminary hearings. Specifically, appellants point to the testimony of Bartko on cross-examination. It was during Bonnie Irvine Tami's preliminary hearing that ...